The Supreme Court of Korea in Seocho-gu, Seoul. [Yonhap]
The Supreme Court of Korea in Seocho-gu, Seoul. [Yonhap]

A soldier's insulting remarks about a superior cannot be prosecuted under the Military Criminal Act's superior-insult provision simply because an unspecified number of people could have heard them, the Supreme Court ruled Wednesday.

The "public method" required under the act must be comparable to means such as posting documents or delivering a speech — forms of expression that carry spreadability, reach and persistence. The court overturned a precedent it had maintained since December 1999, marking the first such change in 26 years.

The Supreme Court's en banc panel, presided over by Justice Lee Heung-gu, overturned the guilty verdict against Navy petty officer first class A on Wednesday and transferred the case to Seoul High Court. The transfer was necessary because the High Military Court, which had served as the appellate court, was abolished following an amendment to the Military Court Act passed by the National Assembly in September 2021 and effective from July 2022, making Seoul High Court the equivalent jurisdictional court.

The central issue in the case was how to interpret the phrase "other public methods" under Article 64, Paragraph 2 of the Military Criminal Act. The provision punishes insults against a superior carried out through "posting documents, drawings or images, delivering a speech, or other public methods."

In October 2019, A had repeatedly offered navigation-related suggestions to a captain while the naval vessel was returning to base, but was ignored each time. In front of three other service members — including a junior enlisted soldier — in the helm room, A said, "The commander here is a mess. He won't even listen to recommendations," then threw his headset onto a desk. He was subsequently indicted on charges of insulting a superior.

The first-instance court found A guilty and sentenced him to six months in prison, suspended for one year. The appellate court upheld that ruling.

The en banc panel ruled Wednesday that the text and legislative structure of the Military Criminal Act make clear that the mere possibility of multiple people hearing a remark is insufficient to establish the offense. The insult must be carried out through posting documents, drawings or images, or delivering a speech — or through a public method of comparable spreadability, reach and persistence, the court said.

"Article 64, Paragraph 2 of the Military Criminal Act uses the expression 'public method,' not 'publicly,'" the panel said. "Interpreting 'public method' as simply meaning a state in which an unspecified or large number of people can perceive the act constitutes an expansive interpretation of criminal law to the defendant's detriment, in violation of the principle of legality."

The panel added that insulting a superior through a public method equivalent to posting documents or delivering a speech "carries a high risk of damaging not only the superior's social reputation but also the military's hierarchical order and chain of command, due to the high degree of spreadability and persistence involved." The Military Criminal Act's separate requirement of a public method was intended to punish precisely such serious infringements, it said.

The panel found that A's conduct did not rise to the level of insulting a superior through a "public method." The three service members present had merely overheard the remark while going about their own duties, and A could not be said to have spoken openly to multiple soldiers or expressed himself in a manner designed to spread or persist repeatedly, the court said.

On that basis, the court ruled that the superior-insult offense under Article 64, Paragraph 2 of the Military Criminal Act "is established only when a superior is insulted by posting documents, drawings or images, delivering a speech, or through a public method of equivalent degree." The ruling overturned prior precedents — including a December 1999 Supreme Court ruling — that had held the offense could be established by mere publicity alone.

A Supreme Court spokesperson said the ruling was intended "to strictly interpret the statutory language and reasonably limit the scope of criminal punishment."


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